plea before stated would truly have applied to them in both its members. The above resolution, it is also contended, will go to sustain a claim e converso, viz. by an English postnatus in Scotland, supposing the same common law to exist there, after the supposed dismemberment; and this view of the case is supposed to have a strong analogy to the case before us. I have already said that this resolution should only be considered with reference to England; in relation to a discussion in Scotland, it was no case before the court; it was wholly extrajudicial: but upon principle I cannot see a difference. The English postnatus was as much born under the allegiance of the king of Scotland, as the Scotchman was under that of the king of England. The kingdom of Scotland was (before the act of union) wholly independent of that of England, and James's character of king of Scotland was not merged in that of king of England. After the supposed separation, a king of Scotland would still exist; there would be a continuation of the same government; and the allegiance due to the king of Scotland at the time of the birth (before the separation) would continue to that king, after that event. It might truly be said of the English postnatus, suing in Scotland, that he was born under the allegiance of the king of Scotland, and was ad fidem with respect to him; and the general plea, before stated, would not truly apply to him. The effect of this supposed dismemberment therefore, would not be to destroy the tie of allegiance by destroying the correlative of the subject, by establishing a different government on the ruins of that government to which the allegiance was originally due; but to transfer and continue to the persons of two kings, that allegiance which before was due to one. I shall presently attempt to shew, that, under the doctrines of those times, (as derived from a feudal origin,) it was no novelty for a subject to owe allegiance to two or more sovereigns. In this supposed case, therefore, quacunque via, there would be, according to the English decisions, an existing allegiance due to the king in either country, which would capacitate the plaintiff to sustain the action. This supposed case of a dismemberment therefore, entirely extrajudicial and hypothetical as it is, only pro

ceeds upon the, idea of a separation of the crowns, of a descent to several kings; it does not put the case of a destruction of the kingly government. It goes upon the idea of the continuation of the same government, though under different kings, and a consequent continuation of the original allegiance: it is therefore entirely different from the case of the destruction of the tie of allegiance by the erection of a new and different government upon the ruins of the old. Every position to be found in the English cases of this era, proceeds, at most, upon the former idea. The right of revolution and erecting a new government was not an admitted doctrine of the day: it was incompatible with the jure divino ideas which then prevailed. May we not then say with confidence, that the case now before us had never entered the minds of the English judges? And that their decisions, even where general, shall not be applied to a case in which the grounds and reasons of their actual decision fail us, and which those judges most certainly never contemplated. These same ideas must be borne in mind, while we examine a quotation from Bracton, 427. which is also much relied on, on the part of the plaintiffs. That quotation says, "there are some Frenchmen in France ad fidem utriusque regis, and always were so, both before and since the loss of Normandy, and who plead here and there, because ad fidem utriusque regis."(o) The Frenchmen here alluded to were Normans, born under the allegiance of the king of England whilst he had possession of Normandy. It is here to be remarked, that the loss of Normandy, which Bracton speaks of, happened in the reign of king John, and in the year 1205;(p) and that Bracton wrote in the reign of Henry III.(q) which reign began in the year 1216: so that this quotation evidently means those Normans born whilst Normandy was subject to England, very many of whom may be reasonably supposed to have been yet alive when Bracton wrote. Because they were born under the allegiance of the king of England, they remained legitimated in England, by the English doc<trines, even after the loss of Normandy, and were still consi(q) 7 Co. 20 b.

(e) 7 Co. 27. (p) 2 Hume, 55.

dered as ad fidem with respect to the king of England; but they were also born under the allegiance of the king of France. Normandy was a fief holden under him: the king of England was, in respect of it, a vassal, and the king of France his liege lord; and there are many instances to be found in the history of both nations of the kings of England doing homage to the French monarchs, in respect of the possessions, which they held on the continent. By the feudal law," allegiance, properly speaking, is due to the lord paramount or sovereign."(r) Under this idea, therefore, those Normans owed allegiance emphatically to the French king; and, in consequence of this allegiance it was, that they were, by the principles of the common law, permitted to sue in France. In illustration of this position we find it resolved in Calvin's case, "that those who were born in Wales before 12 Ed. I. whilst it was a distinct kingdom, were natural born subjects, (as to England) because holden of England, or within the fee of the king of England."(s) These Welchmen therefore, might, as well as the Normans, sue in both countries, and for the same reason, to wit: because, and only because, they owed allegiance to both sovereigns. Whilst I am upon this subject of allegiance, I will refer to 1 Hale's P. C. 58. et. seq. who fully and elaborately proves, that there might be, and really was, in many instances, several allegiances due from a subject to several sovereigns. Thus, in page 66, he tells us, that when Henry II. made his eldest son king of England in his lifetime, so that there was rex pater and rex filius, and when William king of Scotland, had, at the same time, done homage to Henry the son for his kingdom, saving the faith due to Henry the father: these several kings, though subordinate in respect of each other, were sovereigns in respect of their subjects; and the subjects of Scotland owed an allegiance to their king, saving their faith to the kings of England, father and son, and an allegiance to Henry the son, saving their faith to Henry the father.(t) It follows, that these Normans, referred to by Bracton, owed, at their birth, an allegiance to both kings, (viz. of

(r) 1 Bl. Com. 367. ($) 7 Co. 22 ¿.

(e) 1 Hale, 60.

England and France,) and this allegiance continuing during their lives, upon the principles of the English law, they could always be said to be, in the language of the case, ad fidem utriusque regis. Blackstone, in confirmation of this position, of owing several allegiances, admits, that a natural subject of one prince, may, even by his own act, subject himself to another, though he may thereby bring himself into straits and difficulties. (u) Without inquiring into those difficulties, or differing the case of two several allegiances, produced by a revolution, or an act of the government, from that produced by the act of the party himself, this quotation is decisive to shew that a natural born subject may owe allegiance to more sovereigns than one, even since the destruction of the feudal system. Am I not correct, therefore, in accounting for all these supposed exceptions, by shewing, that in every instance there was an existing allegiance due from the party suing to the respective sovereigns?

I have said, and I repeat, that no position by any of the English judges was predicated upon the idea of the erection of a new and different government. If there be any such, let it be produced. Are we not then to consider ours as a new case, not contemplated nor provided for by the English decisions. The reign of James 1. was not an era when the judges were independent enough to have dared, or would have been permitted (see 11 Co. Rep. passim, to prove this) to argue upon a supposition of a destruction of the kingly government. That loyal and devout spirit, which caused the judges in Calvin's case (27 a) so much to deprecate a descent of the kingdom to several kings; that slavish devotion of the judges to the will of king James, which, in relation even to this very case of Calvin, Hume remarks with censure, in more passages than one of his history (see vol. 5. 554, and vol. 6. 169.), while it goes far to destroy the authority of the decision, would not have permitted them for a moment to contemplate the idea of the erection of a popular government upon the ruins of a throne, deemed, in the mania of the times, to have

(u) Tucker's Bl. vol 1. part 2. 370.

been held by divine authority. In the total absence therefore of a case of this kind, either actual or contemplated, in the English authorities, we must reason only from analogy. It is held in Cowper's Reports, page 208, "first, that a country conquered by the British arms becomes a dominion of the king in right of his crown, &c.; and, secondly, that the conquered inhabitants, once received under the king's protection, become subjects, and are universally to be considered in that light, and not as enemies or aliens."(v) And in 1 Bl. Com. 103, the reason of this privilege is given: it is, "that in order to put an end to hostilities, a compact is, either expressly or tacitly, made between the conqueror and conquered, that, if they will acknowledge the victor for their master, he will treat them in future as subjects and not as enemies."(w) Now, nothing can be clearer than that if the whole territory of the belligerent nation is not conquered, the inhabitants of the unconquered part continue to be, in respect of the sovereign of the part conquered, enemies and aliens: enemies during the war and aliens after the peace. They do not become subjects of the conquering power, and are not to be considered in that light, because they have not submitted to the conqueror nor by any compact entitled themselves to the privileges of subjects; and yet they were once inheritable in the country conquered, and can say as much, as the present plaintiffs can say in respect of the territory of Virginia, viz. that at the time of their birth they were legitimated here. The people themselves who are conquered are legitimated by virtue of the implied compact only, and cannot claim such legitimation by the paramount title of having been at the time of their birth inheritable in that territory under another sovereign. If, then, the territory of Virginia had been conquered from Great Britain, in the ordinary way, by an existing sovereign, there is no doubt but that, upon the foregoing principles of the common law, the residuary subjects of the British empire, not residing here, nor contracting an allegiance to the conquering power, would

VOL. III.

(v) Cowp. 208.

(w) 1 Bl. 103.

E